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concluding the appellant did not suffer egregious harm even when considering the cumulative effect of three charge errors
Summary of this case from Caballero v. StateOpinion
NO. 03-19-00219-CR
08-14-2020
Jose Hernandez-Silva, Appellant v. The State of Texas, Appellee
FROM THE 426TH DISTRICT COURT OF BELL COUNTY
NO. 76736 , THE HONORABLE FANCY H. JEZEK, JUDGE PRESIDING MEMORANDUM OPINION
A jury convicted appellant Jose Hernandez-Silva of the offense of continuous sexual abuse of a child and assessed his punishment at 75 years' imprisonment. See Tex. Penal Code § 21.02. The district court rendered judgment on the verdict. In three issues on appeal, Hernandez-Silva asserts that the district court erred in denying his motion to quash the indictment, that his conviction violated the prohibition against ex post facto laws, and that multiple errors in the jury charge caused him egregious harm. We will affirm the judgment of conviction.
BACKGROUND
The State alleged that Hernandez-Silva, between on or about September 2, 2007, and on or about April 1, 2011, when he was 17 years of age or older, during a period of 30 or more days in duration, committed two or more acts of sexual abuse against a child younger than 14 years of age. The victim in the case, TLP, testified that the abuse began in 2005, when she was eight years old and in third grade. TLP explained that at that time, she lived on Lucille Drive in Killeen with her mother, brother, and Hernandez-Silva, her stepfather. The first instance of abuse occurred when she and Hernandez-Silva "were playing around" inside their house, he was chasing her, and he grabbed her breast and her vagina over her clothing. On other occasions, Hernandez-Silva would "smack [her] butt" when TLP walked around the house and, when TLP was washing dishes, he would "stand behind [her] and rub his penis against [her] butt." TLP further testified that when she wanted to play outside, Hernandez-Silva would touch her breasts and force her to touch his penis before he would allow her to do so.
TLP is a pseudonym that was used to identify the victim in the trial court. We will continue to use that pseudonym on appeal.
The evidence of abuse that occurred prior to September 2, 2007, was admitted under Article 38.37 of the Code of Criminal Procedure, which provides that in prosecutions for certain sex offenses, including continuous sexual abuse of a child, "evidence of other crimes, wrongs, or acts committed by the defendant against the child who is the victim of the alleged offense shall be admitted for its bearing on relevant matters, including the state of mind of the defendant and the child and the previous and subsequent relationship between the defendant and the child." Tex. Code Crim. Proc. art. 38.37, § 1(b).
The abuse continued when TLP was in fourth grade. TLP testified that during that time, she "got [her] first period" and Hernandez-Silva "told [her] that things were going be to be different from now on." Hernandez-Silva began touching TLP's breasts and her vagina underneath her clothing and, on one occasion when TLP's mother was not at home, had sexual intercourse with her, penetrating her vagina with his penis.
In September 2007, when TLP was ten years old and in fifth grade, the family moved to New York for four months. TLP testified that during this time, Hernandez-Silva forced her to have sexual intercourse with her on multiple occasions as "payment" in exchange for her being allowed to spend time with her friends. He also continued to touch her breasts and her vagina. TLP testified that the touching could happen "[a]t any time, any moment. Any time he felt like it, he would walk by me, touch me, my boobs or my vagina, or rub himself against me."
In 2008, the family moved back to Killeen, this time to an address on Wales Drive. There, TLP explained, "[t]hings started getting worse" and "more intense." When TLP began middle school, Hernandez-Silva told her that she had to "pay him more." She had to give him "more oral sex" and "be ready whenever he wanted it." TLP then testified in detail to multiple acts of abuse that Hernandez-Silva committed against her, including forcing her to have sexual intercourse with him and to perform oral sex on him. TLP testified that these acts occurred "two or three times a week" and that Hernandez-Silva "called it paying. Paying for whatever [TLP] wanted." She added that the abuse continued for years, until she was in ninth grade and told her mother that Hernandez-Silva had been sexually abusing her.
Hernandez-Silva testified in his defense and denied committing any acts of sexual abuse against TLP. After considering this and other evidence, the jury found Hernandez-Silva guilty of the charged offense. This appeal followed.
ANALYSIS
Notice
Prior to trial, Hernandez-Silva filed a motion to quash the indictment, asserting that the indictment failed to provide him with sufficient notice of the dates on which he allegedly committed the predicate acts of abuse. The district court denied the motion. In his first issue, Hernandez-Silva asserts that the district court erred in denying the motion.
"The sufficiency of an indictment is a question of law." Hughitt v. State, 583 S.W.3d 623, 626 (Tex. Crim. App. 2019) (citing State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004)). Thus, when the denial of a motion to quash turns solely upon the issue of the sufficiency of the charging instrument, as it does here, we review the trial court's decision de novo. Id.
The right to notice is set forth in both the United States and Texas Constitutions. See U.S. Const. amend. VI; Tex. Const. art. I, § 10. "Thus, the charging instrument must be specific enough to inform the accused of the nature of the accusation against him so that he may prepare a defense." Moff, 154 S.W.3d at 601. "An indictment that tracks the language of a statute usually gives sufficient notice." State v. Jarreau, 512 S.W.3d 352, 354 (Tex. Crim. App. 2017).
A person commits the offense of continuous sexual abuse of a child if, during a period that is 30 or more days in duration, the person commits two or more acts of sexual abuse, regardless of whether the acts of sexual abuse are committed against one or more victims; and at the time of the commission of each of the acts of sexual abuse, the actor is 17 years of age or older and the victim is a child younger than 14 years of age. Tex. Penal Code § 21.02(b). The statute defines "acts of sexual abuse" to include the offenses of indecency with a child by sexual contact, id. § 21.11(a)(1), and aggravated sexual assault, id. § 22.021.
The indictment in this case tracked the language of the statute, alleging that Hernandez-Silva, between on or about September 2, 2007, and on or about April 1, 2011, during a period that was 30 or more days in duration, committed two or more acts of sexual abuse against a child younger than 14 years of age when the defendant was 17 years of age or older. The indictment went on to list the predicate acts of sexual abuse that Hernandez-Silva allegedly committed, namely, indecency with a child by sexual contact by intentionally or knowingly engaging in sexual contact with TLP by contacting her genitals; aggravated sexual assault by intentionally or knowingly causing the penetration of TLP's mouth with Hernandez-Silva's sexual organ; and aggravated sexual assault by intentionally or knowingly causing the penetration of TLP's sexual organ with Hernandez-Silva's sexual organ.
Despite the fact that the indictment tracked the language of the statute, Hernandez-Silva asserts that the time period alleged in the indictment was "too broad" to provide him with sufficient notice, and the State should have been required to allege the dates on which he allegedly committed the acts of abuse. We disagree. An indictment must allege what the statute requires the State to prove, see Jarreau, 512 S.W.3d at 354; Beck v. State, 682 S.W.2d 550, 554 (Tex. Crim. App. 1985), but the indictment need not allege facts that are merely evidentiary in nature, see State v. Barbernell, 257 S.W.3d 248, 256 (Tex. Crim. App. 2008); Daniels v. State, 754 S.W.2d 214, 218 (Tex. Crim. App. 1988); DeVaughn v. State, 749 S.W.2d 62, 67 (Tex. Crim. App. 1988). In a prosecution for the offense of continuous sexual abuse of a child, the State is required to prove that the defendant, during a period of 30 or more days in duration, committed two or more acts of sexual abuse against a child younger than fourteen years of age, when the defendant was seventeen years of age or older. See Tex. Penal Code § 21.02(b); Buxton v. State, 526 S.W.3d 666, 676, 681-82 (Tex. App.—Houston [1st Dist.] 2017, pet. ref'd); Jacobsen v. State, 325 S.W.3d 733, 737 (Tex. App.—Austin 2010, no pet.). The statute places no time limitation on when the acts of abuse may have occurred, other than the effective date of the statute and the date on which the child turns 14 years of age. Thus, "[t]he State need not prove the exact dates of the abuse, only that 'there were two or more acts of sexual abuse that occurred during a period that was thirty or more days in duration.'" Buxton, 526 S.W.3d at 676 (quoting Brown v. State, 381 S.W.3d 565, 574 (Tex. App.—Eastland 2012, no pet.)); see also Tex. Penal Code § 21.02(d) ("If a jury is the trier of fact, members of the jury are not required to agree unanimously on which specific acts of sexual abuse were committed by the defendant or the exact date when those acts were committed."). Accordingly, "while the State must provide the defendant with notice of the time period in which the continuous sexual abuse is alleged to have occurred, it is not necessary for the State to allege the exact dates on which the predicate acts of sexual abuse occurred, as those dates are not essential to the State's case and are considered to be evidentiary facts only." Bleil v. State, 496 S.W.3d 194, 204 (Tex. App.—Fort Worth 2016, pet. ref'd); see Holton v. State, 487 S.W.3d 600, 609-10 (Tex. App.—El Paso 2015, no pet.); Smith v. State, 340 S.W.3d 41, 48 (Tex. App.—Houston [1st Dist.] 2011, no pet.).
In this case, the indictment tracked the language of the statute, specified the predicate acts of abuse that Hernandez-Silva was alleged to have committed, and specified the time period in which he allegedly committed those acts. We conclude that this was "specific enough to inform the accused of the nature of the accusation against him so that he may prepare a defense." See Smith v. State, 297 S.W.3d 260, 267 (Tex. Crim. App. 2009); Holton, 487 S.W.3d at 610; Pollock v. State, 405 S.W.3d 396, 404 (Tex. App.—Fort Worth 2013, no pet.); see also Sanchez-Hernandez v. State, No. 07-11-0474-CR, 2013 WL 1460511, at *2 (Tex. App.—Amarillo Apr. 9, 2013, no pet.) (mem. op., not designated for publication); Davis v. State, No. 10-12-00025-CR, 2012 WL 6674429, at *2 (Tex. App.—Waco Dec. 20, 2012, pet. ref'd) (mem. op., not designated for publication); Garcia v. State, No. 05-10-00291-CR, 2011 WL 3199447, at *8 (Tex. App.—Dallas July 28, 2011, pet. ref'd) (not designated for publication). Thus, the district court did not err in denying the motion to quash.
We overrule Hernandez-Silva's first issue.
Ex post facto violation
The original indictment alleged that Hernandez-Silva, between September 2, 2007 and April 1, 2011, committed two or more acts of sexual abuse against TLP "during a period that was 30 or more days in duration, to-wit: from on or about April 2, 2005 through April 1, 2011." Five months before trial, the State amended the indictment by replacing "April 2, 2005" with "September 2, 2007." At the hearing on the State's motion to amend, the State explained that it was amending the indictment to comply with the effective date of the continuous-sexual-abuse-of-a-child statute, which became effective on September 1, 2007, and does not apply to offenses committed before that date. See Act of May 18, 2007, 80th Leg., R.S., ch. 593, §§ 1.17, 4.01(a), 2007 Tex. Gen. Laws 1120, 1127, 1148.
In his second issue, Hernandez-Silva asserts that because the original indictment alleged conduct from 2005, "it is impossible to know whether the grand jury may have indicted Hernandez-Silva based on conduct that took place before September 1, 2007," which Hernandez-Silva contends would violate the federal and state prohibitions against ex post facto laws. See U.S. Const. art. I, § 9, cl. 3; Tex. Const. art. I, § 16. Hernandez-Silva further asserts that the district court violated the prohibition by allowing the State to "put on evidence of conduct that predated the enactment of the continuous-sexual-abuse-of-a-child statute."
An "ex post facto law" is one that (1) punishes as a crime conduct previously committed, which was innocent when done; (2) makes more burdensome the punishment of a crime after its commission; (3) deprives one charged with a crime of any defense available at the time when the act was committed; or (4) alters the legal rules of evidence, and receives less or different testimony than the law required at the time of the commission of the offense, in order to convict the offender. Carmell v. Texas, 529 U.S. 513, 522 (2000). "[T]he 'plain and obvious meaning and intention of the prohibition' is that 'the Legislatures of the several states, shall not pass laws, after a fact done by a subject, or citizen, which shall have relation to such fact, and shall punish him for having done it.'" Ex parte Heilman, 456 S.W.3d 159, 163 (Tex. Crim. App. 2015) (quoting Calder v. Bull, 3 U.S. 386, 390 (1798)).
However, the prohibition against ex post facto laws "is directed at the Legislature, not the courts." Ortiz v. State, 93 S.W.3d 79, 91 (Tex. Crim. App. 2002); see Rogers v. Tennessee, 532 U.S. 451, 457-62 (2001). In other words, "[o]nly the Legislature can violate either the federal or state" prohibitions against ex post facto laws. Heilman, 456 S.W.3d at 163. Accordingly, "an ex post facto problem does not arise from a trial court's erroneous retroactive application of a statute, but only if the statute itself has retroactive effect," Ortiz, 93 S.W.3d at 91 (citing Johnson v. United States, 529 U.S. 694, 701-702 (2000)), and "a defendant must be able to point to a legislative origin of the alleged violation" to prevail on an ex post facto claim, Heilman, 456 S.W.3d at 165.
Hernandez-Silva failed to do so here. His complaint is directed at the actions of the district court and the grand jury, but the prohibition against ex post facto laws "does not apply to courts," Rogers, 532 U.S. at 460, and the grand jury, although independent to a certain extent, is "very connected to the court which impaneled it" and is "frequently characterized as 'an arm of the court by which it is appointed' rather than as an autonomous entity." Ex parte Edone, 740 S.W.2d 446, 448 (Tex. Crim. App. 1987) (internal citation omitted); see State v. Ford, 179 S.W.3d 117, 124 (Tex. App.—San Antonio 2005, no pet.); Bourque v. State, 156 S.W.3d 675, 678 (Tex. App.—Dallas 2005, pet. ref'd); see also Dallas Cnty. Dist. Att'y v. Doe, 969 S.W.2d 537, 542 (Tex. App.—Dallas 1998, no pet.) ("While the grand jury is clothed with great independence in many areas, it is also connected to the court that impaneled it."). Hernandez-Silva does not contend that the alleged violation was a result of the statute itself, as promulgated by the Legislature, and there is nothing in this record that would support such a contention. Accordingly, we cannot conclude that the Ex Post Facto Clauses of the United States and Texas Constitutions were violated in this case. See Heilman, 456 S.W.3d at 165; Ortiz, 93 S.W.3d at 91.
If the statute had been applied retroactively to Hernandez-Silva, he could have raised a due-process complaint in the court below. See Ex parte Heilman, 456 S.W.3d 159, 166 (Tex. Crim. App. 2015) ("Courts can still violate the Due Process Clause of the Fifth Amendment through an 'unforeseeable judicial enlargement of a criminal statute, applied retroactively.'"). However, Hernandez-Silva made no such objection, thereby waiving any possible error on that ground. See Tex. R. App. P. 33.1(a); Yazdchi v. State, 428 S.W.3d 831, 844 (Tex. Crim. App. 2014).
We overrule Hernandez-Silva's second issue.
Within his second issue, Hernandez-Silva also asserts that the State should not have been allowed to change the date specified in the indictment. In substance, this appears to be a complaint that the amendment of the indictment was improper. See Tex. Code Crim. Proc. art. 28.10(c) ("An indictment or information may not be amended over the defendant's objection as to form or substance if the amended indictment or information charges the defendant with an additional or different offense or if the substantial rights of the defendant are prejudiced."). However, Hernandez-Silva did not object to the amendment in the court below. Accordingly, that complaint has been waived. See id. art. 1.14(b); Tex. R. App. P. 33.1(a); State v. Murk, 815 S.W.2d 556, 558 (Tex. Crim. App. 1991); Hoitt v. State, 30 S.W.3d 670, 674 (Tex. App.—Texarkana 2000, pet. ref'd); see also Holiday v. State, No. 14-00-01555-CR, 2002 WL 433134, at *4-6 (Tex. App.—Houston [14th Dist.] Mar. 21, 2002, pet. ref'd) (op., not designated for publication).
Charge error
In his third issue, Hernandez-Silva asserts that he suffered egregious harm from multiple errors in the court's charge to the jury. Specifically, he contends that the charge: (1) improperly allowed the jury to consider as evidence of guilt conduct that took place before the continuous-sexual-abuse-of-a-child statute went into effect; (2) improperly allowed Hernandez-Silva to be convicted based on conduct that occurred in the State of New York; (3) did not require the jury to unanimously find that one act of sexual abuse occurred on at least the 29th day after the day of another act of sexual abuse; and (4) contained a comment on the weight of the evidence.
Standard of review
We review claims of jury-charge error under the two-pronged test set out in Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g). "Our first inquiry is whether the jury charge contained error." Price v. State, 457 S.W.3d 437, 440 (Tex. Crim. App. 2015). "If error exists, we then analyze the harm resulting from the error." Id. "If the error was preserved by objection, any error that is not harmless will constitute reversible error." Id. "If the error was not preserved by objection, the error will not result in reversal of the conviction without a showing of egregious harm." Id.
In this case, Hernandez-Silva did not object to the charge in the court below. Thus, "reversal is required only if the error was fundamental in the sense that it was so egregious and created such harm that the defendant was deprived of a fair and impartial trial." Villarreal v. State, 453 S.W.3d 429, 433 (Tex. Crim. App. 2015). "Charge error is egregiously harmful if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory." Id. "Egregious harm is a 'high and difficult standard' to meet, and such a determination must be 'borne out by the trial record.'" Id. (quoting Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013)). "In examining the record to determine whether charge error has resulted in egregious harm to a defendant, we consider (1) the entirety of the jury charge, (2) the state of the evidence, including the contested issues and weight of probative evidence, (3) the arguments of counsel, and (4) any other relevant information revealed by the trial record as a whole." Reeves, 420 S.W.3d at 816.
Conduct that occurred prior to the effective date of the statute
The abstract portion of the charge included the following instruction: "You are further charged as the law in this case that the State is not required to prove the exact date alleged in the indictment but may prove the offense if any, to have been committed at any time prior to the presentment of the indictment." (emphases added). As explained earlier, the continuous-sexual-abuse-of-a-child statute became effective on September 1, 2007 and does not apply to offenses committed before that date. Thus, as this Court has previously held in a similar case, "the trial court's unqualified instruction . . . that the State could prove that the offenses had been committed at any time prior to the return of the indictment 'present[ed] the jury with a much broader chronological perimeter than is permitted by law.'" Martin v. State, 335 S.W.3d 867, 875-76 (Tex. App.—Austin 2011, pet. ref'd) (quoting Taylor v. State, 332 S.W.3d 483, 488 (Tex. Crim. App. 2011)). The State concedes that this instruction was erroneous for that reason, and we agree that it was. See id. at 876; see also Kuhn v. State, 393 S.W.3d 519, 524 (Tex. App.—Austin 2013, pet. ref'd).
However, we cannot conclude on this record that this error caused Hernandez-Silva egregious harm. First, TLP testified that Hernandez-Silva abused her repeatedly during the time specified in the indictment. During her testimony, TLP described acts of abuse that Hernandez-Silva committed when they lived on Lucille Drive in Killeen prior to September 2007, acts of abuse that he committed when the family moved to New York in September 2007, and acts of abuse that he committed when the family returned to Killeen and lived on Wales Drive beginning in 2008. The conviction could be based only on acts of abuse that Hernandez-Silva committed when they lived on Wales Drive, and TLP described those acts of abuse in detail, explaining that Hernandez-Silva committed those acts "two or three times a week" over several years. This was not a case in which the victim provided vague testimony regarding the timing or location of the acts of abuse. Because of the specificity of TLP's testimony, the jury could easily distinguish between the acts of abuse that Hernandez-Silva allegedly committed on Wales Drive and the acts of abuse that Hernandez-Silva allegedly committed elsewhere. This weighs against a finding of egregious harm. See Martin, 335 S.W.3d at 876. Moreover, the record reflects that Hernandez-Silva focused his defense not on the timing of the incidents but on attacking TLP's credibility and denying that any abuse had occurred. Thus, the issue of whether the abuse occurred before or after September 2, 2007, "was not a heavily contested issue during trial" and did not "vitally affect a defensive theory," which also weighs against a finding of egregious harm. See Kuhn, 393 S.W.3d at 528.
As we explain below, although the acts of abuse in New York were committed within the relevant time period, because they were not committed in Texas, Hernandez-Silva's conviction could not be based on those acts.
The entirety of the jury charge further weighs against a finding of egregious harm. Although the abstract portion of the charge was erroneous, the application paragraph correctly instructed the jury that it could find Hernandez-Silva guilty only if it found beyond a reasonable doubt that between September 2, 2007 and April 1, 2011, during a period that was 30 days or more in duration, Hernandez-Silva committed two or more acts of sexual abuse against TLP. "The application paragraph is that portion of the charge which authorizes the jury to act." Id. at 529 (citing Hutch v. State, 922 S.W.2d 166, 172 (Tex. Crim. App. 1996)). "Thus, [w]here the application paragraph of the charge correctly instructs the jury on the law applicable to the case, this mitigates against a finding that any error in the abstract portion of the charge was egregious." Id.
Additionally, the jury charge contained a limiting instruction regarding extraneous offenses. That portion of the charge instructed the jury "that if there is any testimony before you in this case regarding the Defendant's having committed offenses other than the offense alleged against him in the indictment in this case," the jury could not consider that testimony "for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such other offenses, if any were committed." The instruction further provided that even if the jury believed beyond a reasonable doubt that the defendant committed any such offenses, the jury "may only consider the same for its bearing on the state of mind of the defendant and the child and the previous and subsequent relationship between the defendant and the child, and for no other purpose." This instruction weighs against a finding that the jury convicted Hernandez-Silva based on any acts of abuse that he may have committed before September 2, 2007. See id.
Finally, in its closing statement, the State argued the following:
It may seem arbitrary when we talk about the dates from September 2nd of 2007 to April 1st of 2011. But those are specific dates that need to be taken into consideration when we're talking about this case. September 2nd of 2007, [TLP] was 10 years old. . . . The next date is April 1st of 2011. That is the day before [TLP] turned 14 years old. And as you know, we are only taking into consideration acts that took place when [TLP] was younger than 14 years of age because that's the law.Later in its argument, the State added that it was "limited on [its] dates because on September 1st of 2007, it became illegal to continuously abuse a child." Thus, the State's argument focused the jury's attention on the dates specified in the indictment, which also weighs against a finding of egregious harm. See id. at 530. Considering the above factors in their totality, we cannot conclude that Hernandez-Silva suffered egregious harm from the portion of the charge instructing the jury in the abstract that the State may prove the offense using acts of abuse that were committed "at any time prior to the presentment of the indictment."
So what we are asking you to do is think of that time period. Not the things that may have happened in New York or she may have been somewhere else, but specifically we know that TLP was here 10 years of age finishing out the 5th grade year, and those are the acts that we want you to think about when we're talking about this charge, this case. This guilty verdict.
Conduct that occurred in New York
As summarized above, TLP testified to acts of abuse that Hernandez-Silva allegedly committed when they lived in New York. Hernandez-Silva asserts that the jury charge should have included an instruction that he could not be convicted based on that conduct. See Lee v. State, 537 S.W.3d 924, 926-27 (Tex. Crim. App. 2017) (holding that conviction for continuous sexual abuse of child cannot be based on acts of abuse that were committed out of state).
Assuming without deciding that the charge was required to include a separate instruction prohibiting the jury from convicting Hernandez-Silva based on the out-of-state conduct, we cannot conclude that this error caused Hernandez-Silva egregious harm. The application paragraph of the charge instructed the jury that to find Hernandez-Silva guilty, it must "believe from the evidence beyond a reasonable doubt, that the defendant, Jose Hernandez-Silva, between on or about the 2nd day of September, 2007 and on or about the 1st day of April, 2011, in the County of Bell, and State of Texas, as alleged in the indictment, during a period that was 30 days or more in duration, committed two or more acts of sexual abuse against TLP." (emphases added). Additionally, the State argued in its closing statement that the jury, in reaching its decision on guilt / innocence, was to consider what occurred in Bell County:
September 2nd of 2007, [TLP] was 10 years old. She was living in New York for a bit and then she came back to Killeen. We're asking you to take into consideration the time that she was living in Killeen. That is Bell County. That is our jurisdiction. That's what we are asking you to take into consideration when we're talking about this case.
The State further argued that to the extent the jury considered the evidence of abuse that occurred in New York, such evidence "goes to the state of mind of this child" and "goes to the relationship between the defendant and [TLP]." This argument referred the jury to the paragraph in the court's charge relating to extraneous offenses, summarized above, which provided that "if there is any testimony before you in this case regarding the Defendant's having committed offenses other than the offense alleged against him in the indictment in this case . . . you may only consider the same for its bearing on the state of mind of the defendant and the child and the previous and subsequent relationship between the defendant and the child, and for no other purpose." Moreover, the indictment, which was read to the jury at the beginning of trial, expressly alleged that the charged offense was committed in Bell County and the State of Texas. On this record, we cannot conclude that Hernandez-Silva suffered egregious harm from the failure of the charge to instruct the jury that it could not convict Hernandez-Silva based on acts of abuse that were committed in New York. See Artz v. State, No. 14-17-00973-CR, 2019 WL 1442069 (Tex. App.—Houston [14th Dist.] Apr. 2, 2019, no pet.) (mem. op., not designated for publication) (assuming without deciding that charge was erroneous for failing to instruct jury that it could not consider out-of-state offenses in its determination of guilt but that any error did not cause egregious harm).
Duration of abuse
Hernandez-Silva next contends that the charge erroneously allowed the jury to convict him of conduct that occurred during a period that was less than 30 days in duration. As support for this contention, Hernandez-Silva relies on Smith v. State, 340 S.W.3d 41 (Tex. App.—Houston [1st Dist.] 2011, no pet.), a case in which the court concluded that the charge was erroneous when it instructed the jury that it could find the defendant guilty if it found that "on or about the 1st day of December, 2007, through the 1st day of September, 2008, which said time period being a period that was 30 days or more in duration, in Brazoria County, Texas, the defendant, Jesse James Smith, committed two or more acts of sexual abuse against [the complainant]." Id. at 50 (emphases in original). The court concluded that the instruction "lacked clarity" because "it allowed the jury to find appellant guilty so long as two or more acts of sexual abuse occurred between December 2007 and September 2008 regardless of whether the acts occurred at least 30 days apart." Id. In other words, the instruction implied that because December 2007 and September 2008 were more than 30 days apart, any acts of abuse committed within that time period were sufficient to support a conviction, even if the acts of abuse themselves were not separated by 30 days. See id. at 50-51.
That is not the case here. The application paragraph of this charge instructed the jury that to find the defendant guilty, the jury must find that the defendant, "between on or about the 2nd day of September, 2007 and on or about the 1st day of April, 2011, in the County of Bell, and State of Texas, as alleged in the indictment, during a period that was 30 days or more in duration, committed two or more acts of sexual abuse against TLP." Thus, unlike the charge in Smith, the charge here did not imply that because the dates alleged in the indictment were separated by more than 30 days, that was sufficient to satisfy the statute. Instead, the charge tracked the language of the statute, which provides that a person commits the offense of sexual abuse of a child if, "during a period that is 30 or more days in duration, the person commits two or more acts of sexual abuse." Tex. Penal Code § 21.02(b)(1). A charge that tracks the statutory language is not erroneous. See Casey v. State, 215 S.W.3d 870, 888 (Tex. Crim. App. 2007) (holding that charge tracking language of statute was not erroneous and "declin[ing] appellant's invitation to act as a super-legislature and rewrite [the statute]"); Martinez v. State, 924 S.W.2d 693, 699 (Tex. Crim. App. 1996) ("Following the law as it is set out by the Texas Legislature will not be deemed error on the part of a trial judge."); see also McKinney v. State, No. 05-14-01350-CR, 2016 WL 3963369, at *16 (Tex. App.—Dallas July 18, 2016, pet. ref'd) (mem. op., not designated for publication) (concluding that similar instruction was not erroneous because it tracked statutory language); Knowles v. State, No. 04-12-00180-CR, 2013 WL 1149063, at *5 (Tex. App.—San Antonio Mar. 20, 2013, pet. ref'd) (mem. op., not designated for publication) (same).
Moreover, even if the charge were erroneous in this regard, the record does not support a conclusion that it caused Hernandez-Silva egregious harm. TLP testified that the acts of abuse occurred "two or three times a week" over a period of years. Also, Hernandez-Silva's defensive theory of the case was not that the acts of abuse were committed within a 30-day period. Instead, he claimed that he did not commit any acts of abuse at any time. Thus, the duration of the abuse was not a contested issue at trial and did not "vitally affect a defensive theory." Additionally, the record reflects that during jury selection, the jury was told that to convict the defendant of the offense of continuous sexual abuse of a child, the jury had to unanimously agree that the acts of abuse "were farther apart than 30 days from each other." See Smith, 340 S.W.3d at 51-53 (concluding for similar reasons that defendant did not suffer egregious harm from lack of clarity in charge relating to duration of abuse).
Comment on the weight of the evidence
Hernandez-Silva further asserts that the charge contains an impermissible comment on the weight of the evidence. Specifically, he complains of the following sentence in the charge: "In order to find the defendant guilty of the offense of continuous sexual abuse of young child, you are not required to agree unanimously on which specific acts of sexual abuse were committed by the defendant or the exact date when those acts were committed." According to Hernandez-Silva, the last part of the sentence should read, "you are not required to agree unanimously on which specific acts of sexual abuse, if any, were committed . . . ." He contends that "[w]ithout this limiting phrase, the jury was free to assume the truth of a controverted issue."
"A charge that assumes the truth of a controverted issue is a comment on the weight of the evidence and is erroneous." Whaley v. State, 717 S.W.2d 26, 32 (Tex. Crim. App. 1986); Wilson v. State, 419 S.W.3d 582, 595 (Tex. App.—San Antonio 2013, no pet.). However, in determining whether a comment on the weight of the evidence is harmful, "the charge should be viewed as a whole and review should not be limited to parts of the charge standing alone." Whaley, 717 S.W.2d at 32.
Here, the charge instructed the jury that "in order to find the defendant guilty of the offense of continuous sexual abuse of young child, you must agree unanimously that the defendant, during a period that is 30 or more days in duration, committed two or more acts of sexual abuse." Additionally, the application paragraph of the charge instructed the jury that "if you believe from the evidence beyond a reasonable doubt" that Hernandez-Silva, during a period that was 30 days or more in duration, committed two or more acts of sexual abuse against TLP, "then you will find the defendant guilty," but "if you do not so believe, or if you have a reasonable doubt thereof, you will acquit the defendant and say by your verdict 'Not guilty.'" The charge also included instructions that "[a]ll persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt"; that "[t]he presumption of innocence alone is sufficient to acquit the defendant, unless the jurors are satisfied beyond a reasonable doubt of the defendant's guilt after careful and impartial consideration of all the evidence in this case"; and that "[t]he prosecution has the burden of proving the defendant guilty and it must do so by proving each and every element of the offense charged beyond a reasonable doubt and if it fails to do so, you must acquit the defendant." When viewing the charge in its entirety, we cannot conclude that Hernandez-Silva suffered egregious harm from the omission of the phrase "if any" from one sentence within the charge.
Cumulative effect of charge errors
Finally, Hernandez-Silva asserts that "[t]he cumulative effect of the above-referenced errors" caused him egregious harm. "It is conceivable that a number of errors may be found harmful in their cumulative effect." Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999). However, this is rare and occurs only if the cumulative effect of the errors rendered the trial "fundamentally unfair." Estrada v. State, 313 S.W.3d 274, 311 (Tex. Crim. App. 2010) (citing United States v. Bell, 367 F.3d 452, 471 (5th Cir. 2004)); see, e.g., Alcoser v. State, 596 S.W.3d 320, 338 (Tex. App.—Amarillo 2019, pet. granted) (finding egregious harm from cumulative effect of errors when "jury was not properly instructed on any of the [charged] offenses" and instead "received a hodge-podge of inappropriately defined terms and offenses"). Having reviewed the entire record, we cannot conclude that the above charge errors rise to that level, even when they are considered cumulatively. See Estrada, 313 S.W.3d at 311; Flores v. State, 513 S.W.3d 146, 174-75 (Tex. App.—Houston [14th Dist.] 2016, pet. ref'd); see also Williams v. State, No. 03-18-00267-CR, 2018 WL 3451635, at *11 (Tex. App.—Austin July 18, 2018, pet. ref'd) (mem. op., not designated for publication).
We overrule Hernandez-Silva's third issue.
CONCLUSION
We affirm the district court's judgment of conviction.
/s/_________
Gisela D. Triana, Justice Before Chief Justice Rose, Justices Triana and Smith Affirmed Filed: August 14, 2020 Do Not Publish